The
Department of Community Affairs (DCA) appeals from a December
21, 2015 administrative law judge's (ALJ) decision
reducing the Bureau of Fire Code
Enforcement's[2] (Bureau) disciplinary action terminating
William Hendrickson, a fire safety inspector, to a six-month
suspension. Because the Civil Service Commission (CSC or
Commission) did not have a full roster of three members
constituting a quorum, N.J.S.A. 11A:2-3, it could not adopt
or reject the ALJ's decision until months after the
mandatory forty-five-day time frame elapsed. See
N.J.S.A. 52:14B-10(c). Thus the ALJ's initial decision
was "deemed-adopted" as the Commission's final
decision.[3]Ibid.

For
the reasons that follow, we conclude that when the lack of a
quorum attributable to vacancies caused the agency inaction,
the current version of the deemed-adopted statute does not
require traditional deferential appellate review of the
ALJ's decision. Applying the standard of review
applicable to bench trials, we vacate the six-month
suspension and reinstate the DCA's decision ending
Hendrickson's employment.

After
the departmental hearing, the DCA issued a final notice of
disciplinary action (FNDA) imposing the sanction of removal.
Hendrickson appealed and the matter was transmitted to the
Office of Administrative Law (OAL) for a hearing as a
contested case under the Administrative Procedure Act (APA),
N.J.S.A. 52:14B-1 to -15, and the Uniform Administrative
Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6.

The
preliminary notice of disciplinary action (PNDA) that
followed the incident charged Hendrickson with conduct
unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6);
discrimination that affects equal employment opportunity,
including sexual harassment, N.J.A.C. 4A:2-2.3(a)(9); and
other sufficient cause, in violation of New Jersey's
state policy prohibiting discrimination in the workplace,
N.J.A.C. 4A:2-2.3(a)(12).

The
incident that triggered disciplinary proceedings was
described by the eyewitnesses, two of Hendrickson's
co-workers, at the administrative law hearing. Briefly, on
December 1, 2013, when Hendrickson and the others began their
shifts in the parking lot of a sports stadium, a supervisor
modified Hendrickson's work assignment. Hendrickson was
overheard by his co-workers calling his supervisor, a woman,
a "f---ing c-t." Hendrickson testified that he did
not remember using that language, but admitted saying that he
wished "she [would get] a disease."

The
ALJ's written decision found the outburst occurred as
Hendrickson's co-workers had described, and further found
Hendrickson's failure of memory to be incredible. Since
the language he used was "akin to a racial slur[,
]" the ALJ therefore concluded that DCA had met its
burden of proof by a preponderance of the credible evidence.

The ALJ
also observed that Hendrickson's use of obscenities in
the presence of other employees hurt the morale of both the
supervisor as well as the co-workers who heard "the
gender slur." Furthermore, because the incident occurred
in a parking lot, she took "into consideration the
possibility that members of the public also heard the gender
slur and inappropriate comments." The ALJ held that
Hendrickson had violated the New Jersey state policy
prohibiting discrimination in the workplace, defined in the
handbook he was provided when he commenced employment with
the Bureau fifteen or sixteen months prior.

In
weighing the appropriate discipline for the misconduct, the
ALJ took into account that this was the first blemish in
Hendrickson's disciplinary record, and that he incurred
no other charges for the months he worked with the Bureau
thereafter. Although troubled by his denial of having made
the statement by virtue of lack of memory, and refusal to
acknowledge his wrongdoing, she opined that removal was
unwarranted. Considering "the nature of the offense, the
concept of progressive discipline, and the employee's
prior work record [], " the ALJ determined that
"removal was excessive []" and that a six-month
term of suspension sufficed. The OAL transmitted the initial
decision to the CSC and the parties filed exceptions.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On the
first date the initial decision was scheduled for review by
the Commission, it consisted of only one member, the other
seats being vacant.[4] Accordingly, the CSC obtained a
forty-five-day extension to March 20, 2016, pursuant to
statute. See N.J.S.A. 52:14B-10(c). Because on that
date it still did not have a sufficient number of appointed
members to constitute a quorum, the agency requested a second
forty-five-day extension from the parties. Hendrickson did
not consent. See id.; N.J.A.C. 1:1-18.8(f)
("Extensions for filing initial or final decisions may
not exceed [forty-five] days from the original decision due
date. Additional extensions of not more than [forty-five]
days each ...

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